Personal musings on Israel, Jewish matters, history and how they all affect each other

Sunday, October 25, 2009

Avi Bell on Bill Moyers on Richard Goldstone

Bill Moyers of PBS interviewed Richard Goldstone two days ago. The transcript of the interview is here. (You can also watch the interview from the same page, the link is in the upper left corner).

I haven't even read the entire Report yet, it's so long; once I eventually finish it I'll write my thoughts. However, Professor Avi Bell, law professor at Bar-Ilan and at University of San Diego, has e-mailed his responses to the interview to a list I get. (That would be the group behind the Understanding the Goldstone Report website).

-------------------------------Avi Bell:

1. The Goldstone report draws its conclusions on the basis of 36 incidents it says it investigated. The report says that incidents are illustrative and therefore justify the broader conclusions made by the report. But Goldstone admits that the report lied in saying that the incidents are “illustrative” and in saying that the Mission worked according to its self-described neutral mandate rather than the official biased one. Goldstone says “We chose those 36 because they seemed to be, to represent the most serious, the highest death toll, the highest injury toll. And they appear to represent situations where there was little or no military justification for what happened.” In other words, the Mission chose incidents that were seen as NOT ILLUSTRATIVE, and, rather, most likely to support a finding of war crimes.

2. Goldstone repeatedly misstates the law in the interview.a. Goldstone implicitly misstates the rule of distinction. Goldstone rightly says that the rule of distinction requires combatants to distinguish between “combatants and innocent civilians.” But then, he “proves” that Israel violated the rule of distinction by saying “We found evidence in statements made by present and former political and military leaders, who said, quite openly, that there's going to be a disproportionate attack. They said that if rockets are going to continue, we're going to hit back disproportionately.” Stating that a counter-attack will be disproportionate to the attack isn’t a violation of the rule of distinction. The rule of distinction requires that Israel not aim its fire at civilians as such. It has nothing to do with how much fire Israel can aim at legitimate targets.

b. Regarding the rules of distinction and proportionality, Moyers asks Goldstone, “Who is to say that? Who is to make that distinction?” Goldstone answers, “Well, that distinction must be made after the event.” That is absolutely, positively, not the law. The law is that commanders must make judgments on the basis of knowledge they have at the time, not that one second-guesses them after the event and judges them guilty on the basis of knowledge they may not have had. Thus, for example, Newton testified “In order to properly assess a real proportionality assessment therefore, the relevant question is what did the commander know? What information was available to him?”

This is not an isolated misstatement by Goldstone. Throughout the interview, he keeps giving examples of judging after the fact. For example, he says: “We spoke to the owner of a home in Gaza City. He said he looked out of his window and he saw some militants, whether Hamas or other Palestinian groups, setting up their mortar launchers in his yard. He ran out and said, "Get out of here. I don't want you doing this here. You're going to endanger my family, because they going to bomb. Get out." And in fact, they left. Whether that was typical or atypical, I don't know, we didn't, obviously, cover the field. But assuming they had disobeyed them, assuming they had launched the rockets from over the objections of the household owner, and his family, they launched the rockets and disappeared. It would be a war crime, as I understand it, for Israel to have bombed the home of that innocent household, who didn't want this to happen.” Goldstone again, is wrong. Even if the facts were as Goldstone stated them, and the owner was absolutely innocent, the launching point of rockets would still be a legitimate target, and it would be permissible to attack it if the collateral damage were proportionate to anticipated military advantage, notwithstanding the damage to an innocent owner.

Here’s another example. Moyer prompts “so there was intention,” meaning Israel deliberately violated the rule of distinction. Goldstone responds: “Well, certainly. You know, one thing one can't say about the Israel Defense Forces is that they make too many mistakes. They're very, a sophisticated army. And if they attack a mosque or attack a factory, and over 200 factories were bombed, there's just no basis to ascribe that to error. That must be intentional.” Goldstone again is arguing that he can determine whether there was a crime by looking after the fact at what was destroyed, without any evidence of what the commander thought was the military advantage in attacking the site and what the commander thought would be the collateral damage. In Goldstone’s favor, here he at least tries to provide an excuse for his misstatement of the law: his preposterous assumption of Israeli omniscience.

c. Goldstone falsely states that the only legal way to fight in an urban area is with commando actions. Moyer asks him: “But when the terrorists, the militants, whatever one wants to call them, are known to be embedded in, as you say, those tight, complex, concentrated areas, what's the other army to do?” Goldstone says: “It's for example, to launch commando actions, to get at the militants and not the innocent civilians.” This is clearly not in line with the practice of any other state in the world.

3. Goldstone says that NATO fighting in Yugoslavia was basically legal (Goldstone’s comment: “Take the United States fighting wars in Kosovo and Iraq and Afghanistan. They have certainly at a high level, gone to extremes to protect innocent civilians. Where they've made mistakes, and mistakes have been made, in Kosovo, in Iraq, in Afghanistan, apologies have followed. The United States, in general, has accepted and tried its best, with the assistance of military lawyers, has tried its best to avoid violating international humanitarian law.”). But Israel’s government specifically said, and the report noted that “The Israeli Government states that this expression of its objectives is no broader than those expressed by NATO in 1998 during its campaign in the Federal Republic of Yugoslavia” (paragraph 1201). And the report responded by intimating that Israel’s objectives were therefore illegal (paragraph 1202 – “The Mission makes no comment on the legality or otherwise of NATO actions there”), before then saying explicitly that Israel’s objectives were illegal.

4. It’s interesting to see what Goldstone calls a good investigation. He dismisses the more than 100 Israeli investigations now ongoing because, he says, “it's now, what, seven months since the end of the war. There's only been one successful prosecution against a soldier, who stole a credit card, which is really almost fodder for cartoonists, in the plethora of alleged war crimes.” In other words, Israeli investigations will only be credible if they find Israelis guilty. The other reason he advances for attacking the Israeli investigations is “in those military investigations, as far as I've read, in only one cases have the military even approached the victims in Gaza. And obviously, to have a full investigation, one needs, as you say, to hear both sides.” This is rich, considering that Goldstone never spoke to any of the persons he accuses of committing crimes. Goldstone adds that Israeli investigations shouldn’t be trusted because they are done in “…secrecy? And, you know, I always quote Justice Brandeis, who said, "The best disinfectant is sunlight." And this is happening in the dark. And even with the best good faith in the world on the part of the military investigators, the victims are not going to accept decisions that are taken in the dark, and don't involve them.” But Goldstone is still refusing to refuse the evidence (written submissions, etc.) on the basis of which the report was written.

5. Goldstone states of Israel, “It's got a wonderful legal system, its got a great judicial system, its got retired judges who certainly, in my book, would earn the respect of the overwhelming number of people around the world, including the Arab world, who, if they held open, good faith inquiries, would put an end to this.” It’s worth reciting this in relation to Goldstone’s claims of the inadequacy of Israeli investigations. As paragraph 1803 of the report admits, the Israeli investigatory system ends at the High Court of Justice. Anyone who is disappointed with a decision not to investigate an incident or bring charges against an individual, or failure of a military court to convict may appeal to the High Court of Justice. This includes non-citizens, like alleged Palestinian victims, and interested observers like Goldstone himself. And the High Court of Justice has no standing requirement, so anyone may bring suit, even if they are not directly harmed. If Goldstone really cares to have new investigations, and has any real evidence to show that crimes were committed aside from the conclusory statements in the report, why doesn’t he file a petition with the Israeli High Court of Justice? Why doesn’t he suggest it to any of the alleged Palestinian victims? Is he afraid to put his alleged evidence to the test of a court?

13 comments:

In the light of this and many other reports showing numerous weaknesses in Goldstone report, unwillingness of (part of) our establishment to set up our own commission of inquiry that should make easy mincemeat of Goldstone and his report, is hard to understand.

Ditto, Snoopy. It seems inevitable now. Someone needs to get through to Netanyahu soon. We're paying the price of not having an inquiry, only to have one and lose credibility through the delay.

My original advice stands: invite respected experts in the laws of war and armed conflict from the US, Canada, Europe, anywhere they can be found, to join the Israeli commission in some official capacity. This will lend the inquiry great credibility and should be leveraged to establish an updated set of rules of war against non-state combatants for modern democracies.

as I've only listened to Goldstone i.e. not been distracted by pictures but fully concentrated on tone of voice. Consequently my reaction is a completely emotional one and intentionally so.

I fear no matter how careful the experts will be selected Goldstone will want to see convictions, after all he even kind of hinted that if Israel shouldn't do it, Israelis would be in danger of getting arrested by the international court. I found his voice strangely wavering between hints of held-back tears and a kind of hubris, the absolute wish to have his world-view dominate once and for all.

Using the language in which subalterns at the cubicle level communicate I'd say he sounded like somebody on a vendetta because he had had this great victory of the Human Rights Council bending to his wishes and then the Israelis dared to not bend to the super judgel.

He is going to force the issue.

My wild guess is only a committee whose members have been picked by Goldstone and approved by him alone will satisfy him, anything else will make matters worse. He maybe but just maybe will be generous enough to agree to not chair the commission.

Has any other since 60 years established state ever have to submit to something similar? If not, one shouldn't set an example. The crowd who wants to be able to do away with borders is gathering momentum and one day it may find justification to invade Israel in the name of human rights.

Snoopy. It may not be that easy. I've been following the legal arguments for quite some time and it is very, very difficult to establish a clear legal framework to work from. The problem isn't so much the Goldstone report itself but the legal perspectives it is based on.

In brief; Israel approached Cast Lead as a conventional war, albeit against a party who refused to abide by the rules of war. They held the government of Gaza responsible for the attacks on Israel, as such they were entitled to attack the Gazan infrastructure such as military forces, munitions factories producing rockets etc etc. The military advantage in regards to rules of distinction extended to forcing a cessation of hostilities by the Government of Gaza, that widened the parameters substantially.

It's rather apparent that Goldstone and his cohorts approached cast lead as a Police action by the occupying power. As such Israel would have severely limited options for how they can conduct military operations against non government-sponsored actors. They literally would have to be of the commando-raid type that Goldstone alluded to. If the Goldstone scenario was true Israel likely has committed war crimes.

Israel and Goldstone et al really aren't even talking the same language, there's no common legal ground. If a commission of enquiry took Israels view on cast lead, as it probably would, it would almost certainly absolve Israel of any war crimes. It has to be said it is the only practical view that makes sense. But if Israel had an enquiry with different terms of reference to Goldstones what would it achieve? It would just be rejected as a whitewash & the screeching would get louder.

Israel does need to play smart on this, it's a tricky situation to manouevre out of.

Gavinas I heard it Goldstonee was talking at Moyers a lot about the right to self-defense - am I naive/ignorant to associate self-defense with war and not with a police action?btw I do not think playing smart is going to help much. Rightful indignation at being wronged, not given one's due in respect as a state seems the most promising route to me. rgds,Silke

It's only about legal definitions Silke. Gaza is presently in a kind of legal limbo. It's not legally a nation state but it very much is functioning as one since Israel withdrew. If Gaza was a genuine independent state then few of the accusations against Israel would have merit.

It's last (declared) legal status was as part of the occupied territories however, so Israels foes use that last status as the foundation from which to fabricate war crimes charges against Israel.

One of the interminable 'experts on international law' used the police action argument to accuse Israel of war crimes in the Lebanon 2006 war. Hizbolllah wasn't a state actor, ergo full war wasn't justified so the attacks were disproportionate. That may have been Chinkin, not sure there.

The legal manouvering by the Goldstone mob is infuriatingly hard to pin down. They twist & turn like a trophy fish on a 2kg line. The Goldstone mission seemed like a deliberate trap to me, and meeting any demands by Goldstone could lead one further into it.

I'll just add to my last comment. Anyone interested in the legal arguments I'd recommend reading the 4th Geneva Conventioon. It is the source of most of the war crimes accusations against Israel. Not all, but most. Can find it here;

Read it twice, once from the perspective of Israel having withdrawn completely from Gaza, and once from the perspective of Israel being still (legally) the occupying power. As an occupier Israel is indictably liable under a great many of the articles, as a non-occupier they are not.

Gavin,thanks for your reply and the link - I'll have it for breakfast tomorrow- and as to the Moyers interview just count how often Goldstone says "flower factory" - can there be anything more innocent than a flower factory? really, really and even the Americans have never bombed a flower factory he implies. But don't flower factories use fertilizer? and isn't fertilizer useful for making Qassams?I admit to being paranoid but having witnessed and survived office intrigues of all possible kinds I find comparing Goldstone's maneuvering to them quite useful - and yes those office campaigns have taught me that attacks like these are likely to be very efficient and very hard to get off target.Just note his voice when he tells that after he got the HRC to obey Israel didn't budge. That's the one point that he will neither forgive nor forget.rgds,Silke

I'm just trying to offer a broader perspective Yaacov in the hope it will help the battle, I hope you don't mind me doing so. I've noticed the tendency of people is to react directly against the accusations whereas I think it's a good idea to get into the heads of the accusers & figure out just what they're up to. Look beyond the accusations to the source of them.

Anne Herzberg of NGO Monitor has a good handle on it, she wrote an interesting report called NGO “Lawfare”. Basically the NGOs have teams who scour the statutes for war crimes and then create legal arguments which enable them to accuse Israel of committing them. It's not about guilt or innocence, it's about stretching legal definitions far enough to make them cover Israel.

I've been informed that the International Red Cross used to label Gaza as an autonomous territory this last few years. Just before the Goldstone report came out the ICRC removed all references from their website to Gaza being an autonomous territory and now call Gaza part of the occupied territories. They even edited the map on their website. Now why would they do that?

ever since I read Paul Berman on Bernard Kouchner I live with the vague feeling/fear that there is a trend/Zeitgeist about that wants international institutions with the capability to wield "holy" power independent of by them defined as fallible state governments.

That the UN in its publicly perceived parts is turning more and more into a hybrid between "imperialism" (the Security Council) and majority vote probably fires "them" up that "they" may be able to do a better job at creating authorities that will domante the world into everlasting bliss and harmony. And what better guinea pig for testing their ideas than the forever willing to doubt/second guess its actions state of Israel.

Yes I think it is very necessary to look on the fertile ground, the compost, but when reading legal texts with a lay mind one should always remember that there are law comments also and there are phrases on which there are shelves and shelves of definitions/interpretations.

i.e. chances are good that the lawyers will always succeed at out-interpreting "us" and eachother

- so maybe looking back to time-tested ethical standards is not a bad idea (btw I found out the other day that the 10 commandments seem not to be the same in German and in English, maybe writing a modernized unified version in oh so beautiful old language;-) could do some good because it could provide a reference point for people to judge the prodding of media pundits on)